Marcus M. Beeman, Respondent, v. George A. Banta, Appellant

Marcus M. Beeman, Respondent, v. George A. Banta, Appellant. (Argued March 5, 1889; decided March 12, 1889.) Motion to tiompel the appellant to file a new undertaking with sufficient sureties as required by law, on the ground that one of the sureties to the original undertaking had become insolvent, or in case of failure the appeal be dismissed. The appellant asked that in case the court decided to require a new undertaking it be simply for costs. The following is the mem. of opinion: “We refuse the request of the defendant to be allowed to file an undertaking for costs only because, by virtue of his original undertaking, the plaintiff has been stayed from enforcing his judgment ever since the appeal to this court was taken. “ The appellant ought not to have the benefit of such stay up to the present time, and then by the filing of an undertaking for costs only retain his appeal and leave the plaintiff in a possibly much worse condition towards obtaining the fruits of Ms judgment than he would have been in had the right of enforcement continued from the time of its entry.” Baldwin, Lewis & Kennedy for motion. John H. Parsons opposed. [MAJORITY — Per Curiam mem.] Per Curiam mem. for dismissal of appeal unless the appellant, within twenty days from service of the order upon him, file a new undertaking to the same effect as the original All concur. Ordered accordingly.